Those who publish grossly offensive, indecent, obscene or menacing material on the internet commit a criminal offence – but what about those who post a hyperlink to such material? The High Court addressed that issue in an important test case.
The case concerned a woman who performed grossly offensive, anti-Semitic songs at a far-right event. She was not responsible for posting a video of her performance on YouTube, but published a hyperlink on her blog which took internet users directly to the footage. Her subsequent conviction by magistrates of offences under the Communications Act 2003 was upheld by the Crown Court.
In rejecting her judicial review challenge to that outcome, the High Court found that, as a matter of common sense, the woman was guilty as charged. With a view to widening public distribution of the offensive material, she had provided internet users with a direct signpost to her performance of her own songs. By publishing the hyperlink, she created an interface between two websites, which ensured the conveyance of the footage from one to the other. The Act was directed at preventing the public communication network being used as a means of disseminating grossly offensive material, and that was precisely what she had done.
The woman had also been found guilty of an offence under the Act in relation to another video which she posted directly onto YouTube. In challenging that conviction, she argued that she had sent the footage to an inanimate object – YouTube’s server, which is located in a Californian bunker. There having been no communication of the material to any living person, it was submitted that there was no offence.
In rejecting that argument, the Court found that the fact that the message had been sent to YouTube’s server, rather than the woman’s next-door neighbour, was legally irrelevant. On a true interpretation of the Act, her offence was complete when she sent the footage and it did not have to be viewed by anyone. She had in any event always wanted the video to be seen by other people and they were her intended recipients.